Enabling Rights & Unrepresented Litigants Toolkit … · Web viewEnabling Rights & Unrepresented Litigants Toolkit Pacific Judicial Development Programme Enabling Rights & Unrepresented

ENABLING RIGHTS & UNREPRESENTED LITIGANTS TOOLKIT -

ADDITIONAL DOCUMENTATION

Available at: http://www.fedcourt.gov.au/pjdp/pjdp-toolkits

Toolkits are evolving and changes may be made in future versions. For the latest version of this Additional Documentation please refer to the website – http://www.fedcourt.gov.au/pjdp/pjdp-toolkits

Note: While every effort has been made to produce informative and educative tools, the applicability of these may vary depending on country and regional circumstances.

PJDP is funded by the Government of New Zealand and managed by the Federal Court of Australia. 1

http://www.fedcourt.gov.au/pjdp/pjdp-toolkits


Pacific Judicial Development ProgrammeEnabling Rights & Unrepresented Litigants Toolkit

TABLE OF CONTENTS

Annex 1: Court-Community ‘Access to Justice’ Workshop Outline (Sample)................................................A-1Annex 2: Pre/Post Knowledge Test...............................................................................................................A-5Annex 3: Court Guidance for Unrepresented Litigants.................................................................................A-6Annex 4: Court-Community ‘Enabling Rights Plan’ Template.....................................................................A-15Annex 5: Workshop Power-Points (Sample)...............................................................................................A-16Annex 6: Situation Assessment: Unrepresented Litigants - Kiribati, May 2014.........................................A-21

PJDP is funded by the Government of New Zealand and managed by the Federal Court of Australia i


ANNEX 1: COURT-COMMUNITY ‘ACCESS TO JUSTICE’ WORKSHOP OUTLINE (SAMPLE)

COURT-COMMUNITY ACCESS TO JUSTICE WORKSHOPENABLING RIGHTS & UNREPRESENTED LITIGANTS

(High Court of Kiribati, South Tarawa18-20 November 2014: 9am-4pm)

Overview

Objectives

1. Improve the quality of justice administered by courts to the community2. Provide a process for court outreach and community engagement3. Identify and address the needs of unrepresented litigants4. Identify and address unmet legal needs by enabling rights for justice5. Pilot and settle draft ‘Enabling Rights & Unrepresented Litigants’ Toolkit.

Day 1 Tuesday 18 NovemberIntroduction by the Chief Justice

Theme: What customers think: external perceptions on access to justicePublic workshop for judicial/court officers and justice sector actors

Voices from the community SWOT Analysis: strengths, weakness, opportunities, threats Identifying unmet needs.

Day 2 Wednesday 19 NovemberTheme: Unrepresented Litigants: challenges and solutions

Workshop for judicial and court officers

Toolkit on Unrepresented Litigants Judicial development workshop Guidance for Unrepresented Litigants.

Day 3 Thursday 20 NovemberTheme: Enabling Rights: addressing unmet needs for justice


Toolkit on Enabling Rights Judicial development workshop Enabling Rights Plan.

Closing remarks from the Chief Justice.

*****

PJDP is funded by the Government of New Zealand and managed by the Federal Court of Australia A-1



High Court of Kiribati, South Tarawa18-20 November 2014: 9am-4pm

Detailed Outline

Session Objectives

1. Share and listen to public experiences and perceptions of the courts2. Identify the needs of unrepresented litigants as court users3. Identify unmet needs of non-court users for justice and court services4. Assess public satisfaction with services of the courts.

Day 1 Tuesday 18 NovemberTheme: What customers think: external perceptions on access to justice

Public workshop for judicial/court officers and justice sector actors

09.00-09.15 Introduction by Sir John Muria, Chief Justice of Kiribati

09.15-09.30 Overview by Dr Livingston Armytage, Team Leader, PJDP

09.30-10.00 Introductions by Participants

10.00-10.15 Morning refreshments

10.15-12.30 Voices of the Community - Experiences and perceptions of courts

12.30-13.30 Lunch

13.30-14.30 Identifying unmet legal needs of non-court users for justice

14.30-14.45 Afternoon refreshments

14.45-15.55 SWOT Analysis: strengths, weakness, opportunities and threats

15.55-16.00 Closing remarks.

*****





Detailed Outline

Session Objectives

1. Address the needs of unrepresented litigants2. Familiarise and settle ‘Enabling Rights & Unrepresented Litigants’ Toolkit3. Training on roles of judicial/court officers and court proceedings4. Settle Court Guidance to Unrepresented Litigants.

Day 2 Wednesday 19 NovemberTheme: Unrepresented Litigants: challenges and solutions


09.00-09.15 Introduction by Dr Livingston Armytage, PJDP

09.15-09.30 Review of Day 1

09.30-10.30 Toolkit on Unrepresented Litigants - familiarisation


10.45-12.30 Toolkit on Unrepresented Litigants (cont’d)

12.30-13.30 Lunch

13.30-15.00 Court Guidance for Unrepresented Litigants - settling


15.15-15.55 Settle other aspects of draft toolkit.

15.55-16.00 Closing remarks.

*****





Detailed Outline

Session Objectives

1. Address unmet legal needs by enabling rights for justice2. Familiarise and settle ‘Enabling Rights & Unrepresented Litigants’ Toolkit3. Training on roles of judicial/court officers and court proceedings4. Develop Court Plan for Enabling Rights.

Day 3 Thursday 20 NovemberTheme: Enabling Rights: addressing unmet needs for justice


09.00-09.15 Introduction by Dr Livingston Armytage, PJDP

09.15-09.30 Review of Days 1 and 2

09.30-10.30 Toolkit on Enabling Rights - familiarisation


10.45-12.30 Toolkit on Enabling Rights (cont’d)

12.30-13.30 Lunch

13.30-15.00 Develop Court Plan for Enabling Rights


15.15-15.55 Settle outstanding aspects of draft toolkit.

15.55-16.00 Closing remarks from the Chief Justice.

*****



ANNEX 2: PRE/POST KNOWLEDGE TEST

Instructions

a) At the start of the workshop, the facilitator will administer this test to participants anonymously:

1. Why are unrepresented litigants important?2. List x6 values of judicial conduct3. What is ‘natural justice’?4. Explain burden and standard of proofa. Criminalb. Civil/Land5. List x10 fundamental legal rights.

b) The facilitator will mark and return the answers, and keep the scores.

c) At the end of the workshop, the facilitator will re-administer this test to participants.d) Once completed, ask participants to exchange their answers with someone at another table

who will mark and return their answers.e) Marking - each correct answer receives one mark; marking should be ‘compassionate’, that

is, if the answer captures the spirit of the correct answer, it should be scored positively.f) Model answers can be found in this toolkit, as below, at pages:-

1. Why are unrepresented litigants important? - at/around page 12.2. List x6 values of judicial conduct - at/around page 13.3. What is ‘natural justice’? - at/around page 15.4. Explain burden and standard of proof:

a) Criminal - at/around page 19,b) Civil/Land - at/around page 20.

5. List x10 fundamental legal rights - at/around pages 21 and 22.

g) Calculate the change in scores (knowledge) between pre- and post- testing.



ANNEX 3A: COURT GUIDANCE FOR UNREPRESENTED LITIGANTS - EXPLANATORY NOTE

Explanatory NoteCOURT GUIDANCE FOR UNREPRESENTED LITIGANTS

The Pacific Judicial Development Program (PJDP) is pleased to provide a template to help courts to administer justice with unrepresented litigants.

This template is designed to provide practical guidance for lay magistrates and court officers when dealing with unrepresented litigants. It is part of the ‘Enabling Rights & Unrepresented Litigants Toolkit’: Court Guidance for Unrepresented Litigants (annex 3). This guidance has been drafted for your use, adaptation, translation into local language, and distribution to members of the public who come before your courts.

This guidance has been piloted in Kiribati where litigants (and potential litigants) are usually unrepresented. It was distributed at each court to members of the public. As a result, both the courts and unrepresented litigants found it useful in promoting understanding of the role of courts and in explaining how people can exercise their rights in court more effectively.

Building on this initiative, PJDP’s Program Executive Committee (PEC) has approved extending the benefits of this work to other PICs across the region.

Enabling People’s Right to Justice

It is a fundamental right of all people to come before the courts to obtain justice by exercising their legal rights. The constitution enshrines this right, which is protected by the courts where a judge or magistrate administers the law.

While the laws and procedures of any justice system are numerous and complex, there is a single pure principle at the heart of every justice system. This is the principle of fairness. This principle upholds the fundamental rule of equal treatment for all citizens who come before the courts seeking justice.

Unrepresented litigants - that is, people appearing in courts without representation by a lawyer - are very common across the Pacific. This may be by choice; but more often, it is because of barriers to accessing and exercising their legal rights. These barriers vary in any situation, and commonly include:

geographical (distance), financial (expense), socio-cultural (customary practices and expectations), educational (lack of awareness and knowledge of the justice system).

Unrepresented litigants present the courts with many challenges in ensuring equal treatment and a fair trial. In the ‘adversarial’ system, justice is reached through each party arguing their case before the magistrate or judge. Where one party has a lawyer and the other does not, this creates a risk of ‘inequality of arms,’ that is, an unfair advantage. If a person is unable to access or use their legal rights, then it is not possible for the courts to perform their role of administering justice effectively. To avoid or minimise this risk, the court must take special steps to ensure a fair hearing. One of these steps is to ensure that courts circulate this guidance to people who may need to appear in court.

Purpose



This guidance briefly explains the role of the courts, how they administer law, and how unrepresented litigants can exercise their legal rights to justice. It outlines the 10 ‘fundamental rights’ to a fair hearing, and clarifies the major differences between criminal, civil and land proceedings.

Our consultations with communities have identified that many people do not understand the role of the courts or how they work. They are often uncertain, shy and unconfident to exercise their legal rights. These people are unlikely to approach the court for help - however needy - without some support from the court.

In the interests of justice, the courts have an important responsibility to ensure that citizens can exercise their rights to a fair hearing. This responsibility includes the courts taking active steps to ensure that all people can access and use their legal rights effectively - particularly those who are not represented by a lawyer. Courts that exclude or disable citizens from exercising their lawful rights fail to provide public service, and lose the trust and respect of the community.

Using this Guidance

When considering whether you need to use this Court Guidance, the first step is to consider the problems and needs of people who may seek help from the court. If these people have not obtained any advice from a lawyer, they are called ‘unrepresented litigants’. An unrepresented litigant is a person who comes before a court as a party to a case - not a witness - without any legal representation from a qualified lawyer or any assistance from a para-legal support officer or community-based organisation. These people will need your help to explain how the courts work and how they should exercise their legal rights. In doing so, it is extremely important that you fully understand when you should help and how:

Do’s and Don’ts

All officers of the court - whether registry staff, court clerks, magistrates or judges - are each responsible to ensure that all people coming before the court receive equal treatment and a fair hearing.

Registry staff and clerks of court - are the public face of the justice system, and usually the first point of contact by members of the community. Assistance will normally focus on answering general inquiries, providing and/or advising about the correct forms/documents that need to be completed to initiate a court process, providing referrals to other service providers where required, and providing explanations about court procedures. This assistance should include giving the person this Guidance.

Magistrates and Judges - usually encounter unrepresented litigants when they appear before them in court without a lawyer. Assistance will normally focus on ensuring that they understand their right to legal representation and to explaining the relevant court proceedings in a manner that ensures a fair hearing for both parties. This assistance should include giving the person this Guidance.

Caution is required: officers of the court are not allowed to provide legal advice on the legal merits of any particular case that comes before the court for hearing, because this could affect the impartiality - or the appearance of impartiality - of the hearing and damage public trust in the independence and fairness of the court. This means that you can explain how the court works, but not who is at fault or who will win or lose the case.



Adopting or adapting this Guidance

You may wish to use this template Guidance as drafted, or alternatively, you may wish to change it to suit local conditions in your jurisdiction and court. If so, we encourage you to do so, as required. Each jurisdiction is different. While it is likely that the law and procedures outlined in the template are appropriate and apply in your jurisdiction, we recommend that you check with your Chief Justice to be sure. You may consider that some aspect of local culture or traditions should be mentioned. We also recommend that the Guidance is written in words that are readily understood in your country and is translated into local language/s.

Finally, we recommend that this Guidance should be accompanied by oral communication, that is, a court officer explains the contents in-person to ensure that unrepresented litigants understand the contents, and if needed also clarifies any issues by answering any questions.

Step-by-Step to Additional Recourses: Toolkits and Tools

PJDP has produced a number of related resources to help courts to improve services, a number of which are listed below for your use:

1) First, if you wish to assess the community’s unmet needs for justice, visit:http://www.fedcourt.gov.au/pjdp/pjdp-toolkits/Access-To-Justice-Toolkit-v2.pdf

2) Second, if you wish to improve information available to the public and court users, visit:http://www.fedcourt.gov.au/pjdp/pjdp-toolkits/Public-Information-Toolkit.pdf

3) Third, if you wish to use this Court Guidance to Unrepresented Litigants, visit: www.fedcourt.gov.au/pjdp/pjdp-toolkits/Enabling-Rights-Toolkit.docx

The ‘Enabling Rights Toolkit’ explains the fundamentals about justice for lay magistrates and court officers including:

Function of the Constitution and the rule of law in society Role of courts to administer justice Six values: independence, impartiality, integrity, propriety, equality, competence Principles of ‘natural justice’, procedural fairness and rights to fair trial Ten ‘fundamental rights’ of fair trial - including the right to legal representation Differences in ‘burden’ and ‘standards’ of proof in criminal/civil proceedings Conflict of interest - and when you must disqualify (recuse) yourself Responsibilities to protect the needy, vulnerable and disabled.

In piloting of this guidance, the courts of Kiribati undertook two additional activities that you may also find useful:

1) ‘Court-Community Access To Justice’ workshop - the goal of this workshop is to improve the quality of justice administered by courts to the community by: (a) providing a process for court outreach and community engagement; (b) identifying the needs of unrepresented litigants; (c) addressing unmet legal needs by enabling rights for justice (annex 1: A1-4).

2) Enabling Rights Action Plan - as part of addressing the legal needs of unrepresented litigants, the court also developed an action plan, which identified: what actions it would take, who was responsible, how the needs would be addressed, and what it would cost (annex 4: A10).


http://www.fedcourt.gov.au/pjdp/pjdp-toolkits/Enabling-Rights-Toolkit.docx

http://www.fedcourt.gov.au/pjdp/pjdp-toolkits/Public-Information-Toolkit.pdf

http://www.fedcourt.gov.au/pjdp/pjdp-toolkits/Access-To-Justice-Toolkit-v2.pdf


All of these additional resources can be found at: http://www.fedcourt.gov.au/pjdp/pjdp-toolkits

Should you have any queries, please contact us: [email protected]

*****


mailto:[email protected]



ANNEX 3B: COURT GUIDANCE FOR UNREPRESENTED LITIGANTS - SAMPLE

SAMPLE COURT GUIDANCE FOR UNREPRESENTED LITIGANTS(People who appear in court without a lawyer)

GOING TO COURT: WHAT ARE MY RIGHTS AND RESPONSIBILITIES?

1. Role of the courts

The Constitution of [insert name of your PIC] establishes the courts of law. The courts are responsible for administering the laws. These laws are either criminal (offences against the state, such as murder or theft) or civil (involving the rights of individuals, such as land or agreements). It is the responsibility of the courts to administer these laws independently, equally, impartially, fairly, honestly and competently. In practice, the nature of cases coming before the courts is a mixture of criminal offences, and civil disputes often relating to land.

2. Adversarial system of justice

In [insert name of your PIC], the courts operate in what is called the ‘adversarial system’. In this system, it is the responsibility of the parties to present these cases, and the responsibility of the court (being the magistrate or judge) to make the decision. This means that two sides (or parties) usually contest cases or disputes in front of the magistrate.

3. Role of the magistrate - making decisions

The magistrate (or judge) is the officer of the court who is responsible for deciding the case justly. The magistrate has four key functions to perform: (i) to judge the facts of the case - what happened, (ii) to apply the law to those facts, (iii) to preside over the hearing to ensure it is conducted in an orderly and fair manner, and (iv) to make a decision or judgment, which is legally enforceable as an order of the court.

The magistrate is independent and required to treat both sides equally and fairly. For this reason s/he will explain what the unrepresented litigant should do at the hearing and how the hearing works. The magistrate cannot provide any legal advice on your case - this is your responsibility: if you need help, you are strongly encouraged to consult a lawyer.

4. Recuse of the Magistrate

A magistrate may recuse himself/herself to hear the case - that is, excuse themselves from hearing the case because of a potential conflict of interest - on application by a party or on the magistrate’s own motion where there is or may be a conflict or an appearance of a conflict of interest.

5. Role of the parties to a hearing

In criminal matters, the prosecution (usually the police) brings the case (or complaint) against the accused (defendant).

In civil matters, the claimant (plaintiff) brings the case (claim) against another party (defendant).

6. Appearing in court and legal representation



As a citizen, you are required to appear in court if charged with a criminal offence. You are also entitled to come before the courts to exercise your civil rights and responsibilities. What is a right? A right is an entitlement that you have as a citizen that is enforceable by law. Should you wish to come before the courts, you should be clearly aware of your rights and responsibilities before doing so.

In all cases, you have a right to legal advice and representation - that is, you have the right to be represented by a lawyer. If in any doubt, you are encouraged to consult a lawyer for advice because the law may be complicated and you may require expert assistance. Should you choose not to exercise this right, you may appear in person. If you chose not to use your right to representation, you should understand that the court’s decision is usually final and will be enforced by the law.

7. Legal Aid

You may obtain legal advice and representation from a qualified lawyer who will charge a fee or, alternatively, you may be entitled to free legal aid which may include advice and representation.

8. Appearing in court - telling your story: facts not opinions

If you chose to appear in court without a lawyer, you should prepare your case carefully in advance. In court, the magistrate will explain the order of proceedings. Be sure to do what the magistrate tells you. You will be given an opportunity to ‘tell your story’. Prepare this in advance: start at the beginning and present it in time order. You should include facts (what actually happened), and not opinions (what you thought). You can bring witnesses to support your story or to contest that of the other party. In all cases, it is your responsibility to be honest and tell the truth - failure to do so is punishable.

9. Rights to compensation with costs

A party may make an application to court to be compensated with costs for attending the court if the other side does not come to court.

10. Appeals

If you are not happy with the decision of the court, you may have a right to appeal. If you want to appeal, you are again strongly encouraged to seek legal advice. If you appeal, you are entitled to be represented by a lawyer.

If unable to get legal assistance, you may file your appeal using the 'Appeal Form' available in all the Magistrates' Court offices. Seek the assistance of the Court Clerk for filling the form.

Appeals on the decision of the Magistrates' Court must be made within 3 months starting from the date the decision is delivered. Appeals from the High Court decision must be made within 21 days starting from the date the decision is delivered. You are required to get legal assistance to file your appeal in the Court of Appeal.

11. Right to appeal

Any party dissatisfied with the order/ruling/decision of the Magistrates' Court has the right to appeal to the High Court within 3 months starting from the date the order/ruling/decision of the court is delivered.

It is important to highlight some key differences between criminal and civil cases as these differences may affect your rights and the manner in which you exercise them.

CRIMINAL CASES



Crimes are offences against the state (such as murder or theft) that are prosecuted by the police before the courts.

You have ‘fundamental rights’ when charged with a criminal offence, including:1. You are entitled to be represented by a lawyer if you wish2. You are entitled to a fair and public hearing by a competent, independent and impartial

tribunal established by law. 3. You are presumed innocent until proved guilty according to law.4. You are entitled to be informed promptly of any charge against you, to have adequate time

and facilities to prepare a defence, to be tried without undue delay, and to defend yourself in person or through legal assistance of your choosing or (where the interests of justice require) provided without payment.

5. You are entitled to have witness on your behalf and to examine witnesses against you.6. You are entitled to an interpreter if required7. You cannot be compelled to testify against yourself or to confess guilt - this is sometimes

also called the ‘right to remain silent’8. Juveniles (children), those with disabilities and other vulnerable people require special

protection9. You cannot be tried twice for the same offence10. You may be entitled to appeal if you are not happy with the decision and, if so, you should

obtain legal advice about proceeding further”.

12. Burden and standard of proof in criminal matters

In criminal cases, the prosecution or police has the obligation to establish guilt (‘burden of proof’). Guilt must be established beyond all reasonable doubt (‘standard of proof’: a very high degree of certainty). You are not obliged to prove anything. But you may contest the prosecution charge (version of events). If so, you may call your own witnesses.

If you do not understand the charge, you should ask the magistrate to explain. If you ‘plead guilty’ (that is, admit the charge), or are found to be guilty by the court, you will be liable for a penalty imposed by the law.

CIVIL CASES - INCLUDING LAND

Civil cases are disputes over personal rights between individuals (such as agreements or over land).

1. Burden and standard of proof in civil cases

In civil cases (or private disputes) the claimant (person bringing the case) has the obligation (‘burden of proof’) to establish their claim on the balance of probability (‘standard of proof’: a probable degree of certainty). The defendant (person against whom the case is brought) may contest the claim, and may bring their own claim against the claimant (counterclaim) with or without witnesses.

2. Discretion for Court Fee Waiver

A citizen with shortage of economic incomes may apply to the Court for a Court Fee Waiver if unable to meet a court fee specified by law.

The court’s decision, which may include an order for damages and/or costs, is enforceable by law.

3. Enforcement of Judgment



In civil cases, the winning party may file an enforcement application of the court decision if the losing party never complies with the order/decision of the court.

UNDERSTANDING THE JUDICIAL PROCESS: CRIMINAL & CIVIL HEARINGS

As explained above, the judicial process consists of an independent person (judge or magistrate) conducting a hearing between two competing parties and ‘judging’ or making a decision on the case.

In criminal cases, the parties are called the prosecution and accused (or defendant); in civil cases, the parties are called the plaintiff (or claimant) and the defendant. The judge or magistrates hears the case and ensures that it is conducted fairly for both parties using rules of law and court procedure. In criminal cases, the prosecution has the burden of proof (or obligation) to establish guilt ‘beyond all reasonable doubt’ (the standard of proof is to a very high degree of certainty). The accused does not need to proof anything, but may contest the prosecution’s case. In civil cases, the plaintiff has the burden of proof to establish her/his case ‘on the balance of probabilities’ (the standard of proof is lower: to a probable degree of certainty).

The magistrate or judge is responsible for conducting a fair hearing that is impartial, providing even treatment to both parties coming before the court, and applying the relevant law and court procedures.

Criminal hearings (or trials) are generally structured as follows:1. Court officer calls the case.2. Prosecution appears.3. Accused appears.4. Court officer reads charge.5. Accused enters a plea, including (if a plea of guilty) a plea of mitigation.6. If guilty, the magistrate will convict the accused on his/her own plea of guilty and enter judgment.

The magistrate then starts sentencing proceedings by listening to pleas of mitigation for the purpose of sentencing proceedings from both parties.

7. If not guilty (defended), the magistrate may adjourn the case and may impose bail or proceed by consent.

8. In defended hearings, prosecution presents evidence to establish the elements of the offence - case against the accused with witnesses.

9. If there is a case to answer, the accused then presents the defence with witnesses.10. Magistrate makes a decision to acquit and convict - if guilty, the magistrate enters a judgment

and imposes a sentence which may be a fine or imprisonment.11. If convicted, the accused has a right to appeal - provided s/he has sufficient grounds for appeal.



Civil (including land) hearings are generally structured as follows:1. Court officer calls the case.2. Plaintiff appears.3. Defendant appears.4. Court officer reads the claim, and any counter-claim.5. Magistrate may inquire whether the disputes can be settled informally.6. In contested disputes, the plaintiff presents evidence to establish her/his claim with witnesses.7. The defendant presents her/his defence to contest the claim and present any counter-claim with

witnesses.8. The magistrate makes a decision on the evidence presented, and enters a judgment which may

include an order with damages, and may also include legal costs.9. The losing party has a right to appeal - provided it has sufficient grounds for appeal.

Need any help? If you have any questions before the hearing, contact the court clerk [insert clerk’s contact details] or Legal Aid on [insert contact details for Legal Aid]



ANNEX 4: COURT-COMMUNITY ‘ENABLING RIGHTS PLAN’ TEMPLATE (with sample for local adaptation)

Working in workshop groups, complete the planning template below:-

COURT-COMMUNITY ‘ENABLING RIGHTS PLAN’

Strategy(sample)

Beneficiary Activity Actor Start-Finish Resources Success Indicator

Outreach

Education

Information

Others (TBA)

***(sample for illustration)



ANNEX 5: WORKSHOP POWER-POINTS (SAMPLE)











ANNEX 6: SITUATION ASSESSMENT: UNREPRESENTED LITIGANTS - KIRIBATI, MAY 2014

1) Kiribati confronts some extraordinary governance challenges arising in particular from its geography. The population of some 100,000 citizens is highly dispersed across 34 island/atolls - organised in 23 court districts - over some 3.5 million sq. kms of Pacific Ocean. 55,000 people inhabit South Tarawa, and a further 6,000 inhabit adjacent North Tarawa. The remainder are dispersed as far as Christmas Island, which is without direct air-link and takes two weeks to reach by sea.

2) The absence of lawyers is characteristic of court hearings in Kiribati, particularly in the Magistrates Court on outer islands/atolls. Unrepresented litigants (URLs) constitute a major feature of ordinary court proceeding: some 95%+ of all cases in the Magistrates Court, and 16.5% of cases in the High Court - statistics to be confirmed.

3) The judiciary of Kiribati is three-tiered: Magistrates (lay and law-trained), High Court (now 2 law-trained expat judges), and the Appeal Court (convenes once annually, comprising expat judges from the region: mainly Aust/NZ). Appeals from the decisions of magistrates are relatively rare, owing in part to lack of understanding of the right to (a) representation and (b) appeal. Appeals from decisions of the Magistrate Court are often upheld owing to errors of law - statistics to be confirmed.

4) Access - most people do not have ready access to the High Court, which conducts a circuit to one atoll annually; most atolls many have not been visited during the past 5 years. Consequently, the hearing of appeals may be postponed for many years unless relocated to South Tarawa.

5) The magistracy is essentially lay. Of 155 magistrates, only 2 are law-trained. 7 magistrates sit in three courts on South Tarawa (the ‘capital’ island), only two of whom are law-trained - each of whom sit as single magistrates; the rest sit in panels of three. On the outer islands, all magistrates are lay, sitting in panels of 3-5-7.

6) The legal competence of the lay magistracy is low: the main qualification for appointment is community respect. While all magistrates have prior experience as court clerks, their knowledge of law/procedure and their understanding of the judicial role is basic at best. The magistracy has access to a bench book, published by PJEP in 2004, which is elementary but remains sound. The court plans to encourage staff to enrol in USP’s Certificate of Law from 2015 onwards.

7) Lawyers are scarce in Kiribati: there are some 50 members of the Law Society: most of whom practice in Government law offices (DPP, ministries etc). The largest private firm is the People’s Lawyer (equivalent to legal aid) which employs 2-3 lawyers and some para-legals whose right to appear in court is restricted. Private lawyers practice mainly on South Tarawa, rendering parties on outer islands almost invariably unrepresented. In exceptional cases only lawyers appear in cases heard on outer atolls.

8) The community has very low levels of legal literacy, in terms of base-level understanding of the justice system, role of judicial officers and lawyers, and legal rights.

9) URLs - many/most people appear in court unrepresented owing to: (i) ignorance of their rights, (ii) distrust of lawyers or the (iii) inaccessibility/delay/cost of obtaining representation.

10) Consequently, in most court cases in Kiribati, there is no legal expertise available in court hearings whatsoever - neither the bench nor the litigants have any legal training. As the Chief Justice knows, this presents fundamental challenges for the administration of justice.

11) Other existential challenges in Kiribati include subsidence from global warming, over-population, economic fragility, unemployment, sanitation, transport and IT.

12) Many/most civil disputes relate to land - particularly in the outer islands. Kiribati society remains a close-knit and traditional community and church structures at village level are extant and vibrant. There is



some crime of South Tarawa: alcohol-related fighting between unemployed young males using weapons (knives) is quite common, as is domestic violence.

13) Women are systemically disadvantaged in Kiribati society which is culturally patriarchal. Domestic violence is pandemic and at scandalous levels in global terms: 68% of females report being victims of physical/sexual violence during their lives; and 38% during the past year. This compares grievously with the international benchmark: 35% of women report being victims of physical/sexual violence during their lives, globally.1 This problem is concealed by massive under-reporting: only 1.2% of victims report to police or other authorities (church or village leaders). Women under-report domestic violence for various reasons: cultural, economic and pragmatic: in Kiribati, domestic violence is regarded as ‘family business’ to which neighbours turn a blind eye. Women’s options for relief are scant: most are economically dependent on their husbands for support. Both police and the lay magistracy are described by professional observers as being patriarchal; and the Roman Catholic Church is reported by expert observers (UN Women) to routinely counsel victims to forgive their abusers and stay in their home. Taken in combination, this constitutes a grave justice failure. The imminent promulgation of the new Family Peace Bill (2014) provides a timely opportunity to all law and justice service providers to address this problem with renewed vigour.

14) While each case differs, generally it is court practice for lay magistrates on outer islands to not advise URLs of their rights to legal representation or appeal. By contrast, generally lay magistrates on South Tarawa do provide this advice to URLs. For the purposes of a toolkit, this constitutes a significant distinction in court practice between South Tarawa and the outer islands/atolls.

1 Kiribati Family Health Study 2009; and UN http://www.who.int/mediacentre/factsheets/fs239/en/


http://www.who.int/mediacentre/factsheets/fs239/en/

Pacific Judicial Development ProgrammeENABLING RIGHTS &UNREPRESENTED LITIGANTS TOOLKIT

PJDP toolkits are available on: http://www.fedcourt.gov.au/pjdp/pjdp-toolkits


Documents

Enabling Rights & Unrepresented Litigants Toolkit … · Web viewEnabling Rights & Unrepresented Litigants Toolkit Pacific Judicial Development Programme Enabling Rights & Unrepresented